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Friday, April 15, 2011

What bothers me about law students (and lawyers) who post anonymously on blogs.

When I take breaks from my work, I often check out blogs. There's a relatively new blog that covers law in Las Vegas. It frequently has stories about Boyd Law School and the people who work there.

It's not the stories I mind.* It's some of the comments that people post that bother me--and not because of the text of the comments. What bothers me is that the comments are posted anonymously. Some of those comments are posted by people who appear to have a connection to Boyd.

Here's what I don't get: no one forces anyone to post anything on a blog. Posting on a blog isn't a course requirement. One doesn't have to write blog posts to get admitted to the bar, or to stay in good standing with the bar. Blog posts are voluntary acts.

Because posting is voluntary, I consider anonymous posting to be mobbing behavior. I consider anonymous posting by law-trained people to be particularly repugnant.

Lawyers have to sign their names to their work. They sign pleadings. (And, in federal court, they're signing those pleadings with an understanding that Rule 11 applies to them.) Even transactional lawyers create drafts that they forward to the other side under their own names. For better or worse, what a lawyer does is inextricably linked to his or her reputation.

What of those lawyers who are posting their thoughts about judges, and doing so anonymously? I suppose that they're posting anonymously because they're afraid of running afoul of ethics rules like this one (Nevada Rule of Professional Conduct 8.2):

Judicial and Legal Officials.

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

There are mechanisms for communicating to the public that a judge is biased or incompetent. There are surveys about judges' abilities. There are disciplinary proceedings that someone can initiate. (Whether those disciplinary proceedings actually work is another matter.) Some of these mechanisms even allow anonymity to provide protection for those trying to seek change (e.g., voting an elected judge out of office). So, for lawyers who are worried about retaliation for complaining about judges, there are legitimate outlets for their complaints. (There are also mechanisms that lawyers can use when they have serious problems with other lawyers, such as rules requiring reporting of known and serious misconduct. For example, there's Rule 8.3. Again, I'm not convinced that this particular mechanism is effective, but it does exist.)

Most law students are lawyers in training. If they have problems with something occurring in law school, they have their own mechanisms for communicating those problems--even some mechanisms that can protect them from any feared retaliation. If they have a problem with someone's teaching, they can fill out course evaluations, which are anonymous. (I know, I know: students evaluating tenured professors often believe that their evaluations fall on deaf ears, because the administration may have little power to correct the problems raised by those evaluations.**) If they have problems with an administration's policies, they have ways of communicating those problems in a group, or through a representative.

But I believe that most fears of retaliation are overblown, and I also believe that people who resort to anonymous posting on blogs to express their concerns are cowards. Again, posting a comment is a voluntary act. If someone feels so strongly about something that he's compelled to post a comment, he should have the courage to sign his name to that posting. If he's a law student preparing to become a lawyer, he had better get used to signing his name to his work.

Anonymous postings also lack credibility. It's hard for me to take seriously an anonymous comment, precisely because I don't have the opportunity to consider the source of the comment.

How strongly do I feel about anonymous posts? Well, after I publish this post, I'll be posting links to it on this other blog. And, of course, those links will identify me. I have no problem with that.

** In fact, administrations do have the ability to deal with egregious misbehavior by even the most senior, tenured professor. The administration will have to run through more hoops, but it's possible to discipline such misbehavior. First, though, the administration needs to know about the behavior, which means that people have to come forward with credible complaints.

10 comments:

Anonymous
said...

I just wanted to be ironic by posting an anonymous comment to this post.

Silliness aside, I agree with you to a point. I try not to use anonymity as an excuse to be rude or over-the-top. However, I think you're asking a lot for people to identify themselves when they give honest criticism of peers and judges. Also, I think readers are usually able to distinguish between people who are being honest and people who just have a bone to pick.

Thanks, Anonymous (and I like your sense of humor)! Yes, I'm asking a lot of people when I ask them to step up to the plate when they give honest criticism. But I also believe that life has consequences, and that people who fear consequences should avoid taking actions that would trigger them.

I am not trying to be sarcastic or antagonizing - this is a genuine question: what are the consequences triggered by a lawyer's anonymous posting?

I take exception to the statement people who fear consequences should avoid taking actions that would trigger them in the context of your initial post. It sounds like you are saying that, for example, a law student who has a genuine, relevant (and potentially valid) concern about a professor's actions should not go to the administration in order not to trigger the possible consequence the student fears, which is retribution from the professor?

Incidentally, I do not post anonymous negative comments about judges or professors and generally find such posts repugnant.

There is a big difference between signing your name to a pleading to be filed in court and signing your name to an opinion you decide to air on the Internet. As you no doubt are aware, the Internet does not forget your opinions and so they can easily come back to haunt you--particularly when future employers google you. When I sign my name to a court document, it is a well researched, factually sound document that I am filing as part of my job. When I post anonymously on the local blog, I am expressing an opinion, maybe well researched, maybe not, that I am not required to as part of my job.

Personally, I post anonymously when it comes to opinions because I don't want to have it come back to bite me. I'm not defaming anyone or doing anything I believe to be inappropriate, but that doesn't mean someone else won't look at it that way. The Las Vegas legal community is small and to offend one person, could unfortunately be your undoing in court next week or next year.

For Anonymous #2, who asks about consequences stemming from an anonymous posting: the anonymous posts can say exceptionally nasty things about people that the poster would never dare say to that person's face. To me, it's the height of cowardice to hide behind anonymity when "wilding" someone. For the law student who's concerned about retribution, I actually do think that the administration (or a trusted senior faculty member) can protect against that risk of retribution. Here's a story from my past: at one school at which I served as an administrator (and I've served in such capacity at three schools), a first-year professor routinely missed the first 20 minutes of a 50-minute class. Sure, that professor's students could have posted somewhere anonymously and hoped to effectuate change in some vague way, but instead the students started writing about the problem in their course evaluations. Result: professor disciplined; problem solved; no retaliation.

Lawyers are supposed to be their clients' champions (within the bounds of the law) and are supposed to find ways to work within the system to solve problems--even when so doing will cost them in personal and professional ways. People who don't have the ability to stand behind their comments should find a different profession. (My dad would point out, though, that other professions also expect people to stand by their comments, too.)

I think it is important not to overlook the practical ramifications. Let's assume that a hypothetical judge has a well-established bias towards plaintiffs and their lawyers. Let us further assume that the judge's deputy rearranges the order of the judge's calendar to accomodate those attorneys he/she may know (thus costing more time/money to the unknown lawyer's clients). I imagine a defense attorney would like to know this information when he/she has the chance to challenge. I also imagine that an atorney posting such information would be at a disadvantage when practicing in this courtroom in the future. That's reality.

Rating judges is done anonymously, and for good reasons. Student evaluations of professors (even law school professors) are done anonymously as well. While some anonymous posters on blogs definitely get out of hand, anyone with intelligence can sort through the postings by those who merely have an ax to grind or a personal agenda. If done with a modicum of restraint and based on “facts”, anonymous postings can certainly be beneficial.

So posting anonymous comments in the RJ's Judicial Survey does not violate rule 8.2 but posting anonymously on a blog does? I understand that some blog comments are utterly inane but you can't hold an attorney to a higher standard when it comes to an opinion. Should some of the comments rise to slander, there is always a vehicle to at least determine where the post originated from, nothing is ever truly anonymous.

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